This is our new Constitution: How we fix gun rights, the Supreme Court, inequality -- and foster true democracy

Freedom, fairness, equality: Here is how we get there, while fixing problems caused by gun nuts, right-wing judges

Published October 5, 2014 10:58AM (EDT)

  (Reuters/Joe Burbank/Brendan McDermid/AP/Jason Decrow/photo montage by Salon)
(Reuters/Joe Burbank/Brendan McDermid/AP/Jason Decrow/photo montage by Salon)

We talk a lot about inequality these days. Wal-Mart heirs. Plutocrats. Occupy Wall Street. Minimum wage. The 47 percent. Liberals are prone to feeling a strong sense of responsibility for others whom they do not know personally, tending to see good in the potential of innovative social programs. Conservatives are more comfortable emphasizing individual responsibility and religious charity over government-sponsored social programs. But in either case, the American identity is bound up with the idea that the health of the republic flows from a sense of fairness. Our Constitution guarantees it. Or does it?

Freedom and fairness are both relative concepts. The difference is often a question of freedom for whom, fairness to whom? How far should government’s role as an equalizer of opportunity extend? The questions are simple enough for anyone to state, but contained in them are multitudes of possible interpretations (and the basic reason why the court system is a site of contention). Either social programs contribute to a sense of independence, as liberals insist; or they encourage long-term dependence, as conservatives believe. To keep dialogue going, let us at least accept that the aim of both sides is to actualize, to maximize, the individual’s freedom to pursue happiness.

It is critical that twenty-first-century American conservatives agree to one slippery principle, however, if anything good is to take place. And that is this: Individual liberty is not won by “getting government off our backs”; it is gained through good government. Eisenhower Republicans in the conservative 1950s agreed with this notion and responded to empirical evidence. The social safety net was not ideological anathema (socialism) then. We should all accept that in securing liberty, the individual is not free from all constraint, or immune to government. In terms the founders provided us, we are meant to be protected only from corrupt or despotic government.  Taxation in itself is not corruption. But when government acts counter to the majority’s welfare (as by delivering outsize economic power and opportunity into the hands of the few) it is corrupt. Fortunately, it is a reversible condition.

The Constitution was far from perfect at conception, as its framers soon realized. Perhaps most immediate, and most significant, was the lack of any means for accommodating rival political parties: the “ticket” of president and vice president was not instituted until fifteen years after the inauguration of George Washington. If the framers couldn’t anticipate parties, just imagine everything else they overlooked that the amendment process hasn’t fixed, that we’re still living with. They governed a country whose population was one one-hundredth what ours is today.

Here is another obvious case of the founding generation’s remoteness from our time: the Second Amendment. These days, among all the critical issues covered by the Constitution, an inordinate amount of debate concerns gun rights — which was perhaps the least controversial issue when the Bill of Rights was adopted. Townsfolk understood that participation in the local militia was a civic duty meant for all males. Owning a weapon was a tool for those who hunted.

When people are led to believe that their quest for liberty is best symbolized in the freedom to arm themselves, rather than something more basic, then they are being abused both by those who profit from growing gun sales, and by those who seek to convince them that security is about something less substantial than the capacity to pursue real happiness through mental and physical labor, measurable self-respect and access to material advance.

We have reached a level of absurdity in associating the right to stockpile arms with individual freedom. Those not obsessed with gun rights should be protected against gun nuts, too, right? Guns in bars? In places of worship? Over the last few decades, the National Rifle Association has been singularly effective in transforming itself from its earlier role as a politically moderate organization desiring an increased awareness of firearms education and improved marksmanship. People have forgotten that the NRA was for many years a proponent of gun control. Today, of course, it represents the interests of gun manufacturers, because no anti-gun realist wishes to dispossess recreational hunters of their responsibly maintained sport rifles. Yet the NRA has succeeded in transforming the general understanding of “gun rights,” so that many millions have become convinced that gun possession is an extension of selfhood. That new dogma has made civil debate impossible. Those who impulsively cry out, “They’re coming for your guns” (meaning the federal government) have chosen an interpretation of the Constitution — even more, the Declaration of Independence — that presents the controversy as one in which personal freedom is in mortal danger. This is paranoid nonsense.

Reason dictates that we not compromise individual freedom, yet we must avoid the fantasy of vigilante heroism. Retired Supreme Court Associate Justice John Paul Stevens made headlines earlier this year by suggesting the addition of five simple words to the Second Amendment in order to better express its late-eighteenth-century meaning: “A well-regulated militia, being necessary to the security of a free state, the right to keep and bear arms when serving in the militia shall not be infringed.” Of course, the town militia was long ago replaced with the National Guard, and private militias with weird ideas about self-protection are not encompassed in the “original meaning” of the Second Amendment either.

Gun rights libertarians have tipped the scale from the victims of gun violence in favor of the shooters. “Stand your ground” laws permit the gun owner to define the threat, giving him or her (usually it’s him) carte blanche in applying lethal force. The George Zimmerman travesty was not the first instance of this either. Remember Bernhard Goetz pulling a gun on black teens in the New York City subway in the mid-1980s?

Americans forget the past with disturbing regularity. Few recall how Ralph Nader changed the safety standards for American cars in the 1960s. True, t­he automobile industry tried to ruin him. But at least GM and Ford never claimed that owning an unsafe car was a constitutional right. Yet here’s a revealing fact about the present debate: the same people who believe it’s an imposition for a gun owner to register his weapon (though he registers his car) believe it’s okay to deny voting rights to those who cannot produce a driver’s license. Think about that.

So, no matter what a slim majority of the sitting Supreme Court says, the right to bear arms, as Revolutionary Americans conceived it, had nothing to do with the modern libertarian conception of “gun rights.” The framers of the Constitution never endorsed what Justice Scalia invented in the Heller decision. They tended to believe in regulation, fearing the greater danger of anarchy; they did not advocate gun rights amid suburban sprawl; their guns fired a single ball. Minimally, then, it should be a requirement that everyone register every gun and declare why he wishes to purchase it. No stockpiling. No hi-tech, military-grade weapons in private hands.

But let us return to the key issue that Americans, when polled, are up in arms about: the decline in economic opportunity for individuals. While we cannot say that each generation is owed a standard of living or level of comfort equal to or better than that of their parents’ generation, we can stipulate that the Constitution — the defining document of nationhood — should dictate against the hardening of social classes.

History gives ample evidence that America was class-conscious even before it became race-conscious. Somehow, though, as the rags-to-riches legend took hold, the majority came to believe that crossing class boundaries was a defining characteristic of American life. It’s simply not true. Social mobility does occur, but not at all in the way, or to the extent, that the old slogan “Land of Opportunity” would suggest. Our eyes do not deceive us: some of the hardest working people in America are also the most poorly paid. Those who say that the poor merely have to work harder to get ahead are merely deluded.

Nothing approaching a comprehensive effort has ever been made to educate the poor. Barely even agents in their own lives, they are told to think small. We should stress here that the majority of poor people in the U.S. are white, not people of color. (Yet compared to whites, a greater percentage of blacks and Latinos in this country live in poverty.) In his Second Inaugural Address, President Obama proclaimed confidently: “We are true to our creed when a little girl born into the bleakest poverty knows that she has the same chance to succeed as anybody else, because she is an American; she is free, and she is equal.” That is not how it is. Those born poor will be nutritionally deprived, in more ways than one.

Prudent men would make good laws — that’s what so-called “Father of the Constitution” James Madison counted on. In his time, the young and promising found patrons and were mentored. It was a workable means of educating, and of introducing new blood, 250 years ago. It does not work that way anymore.

Outspoken republicans of our nation’s founding generation had a remarkable idea: The best citizens were not always those who came from money or who bore a recognizable family name, but were, in fact, those who were the most intellectually curious, desirous of obtaining new knowledge, motivated to help improve society and endowed with recognized mental acuity. The immigrant success stories we hear about mostly involve individuals who received superior training overseas, and used that to find their way into the American middle class. Maximizing opportunity for the modest, deserving citizen was not considered the “job” of government in 1787; it was, however, a desirable outcome under republican government, and it remains today in the long-term interest of every lover of this country.

The founders told us that America was going to be different from other nations, that a permanent moneyed aristocracy was a political evil our republic was dedicated to avoiding. Yet as we now recognize, class self-replicates far more than written and uttered patriotic effusions urge us to believe. Sons of former politicians are voted into office on a “name recognition” basis, just as so many of today’s Hollywood celebs are the offspring of former stars and current producer-directors. Meritocracy? Hardly. How much money and education your parents have is the major determinant of your prospects in life. Period.

The hard truth is that economic opportunity has been proven less real in America than in Western Europe. If we were to construct a new Constitution, it would have to address the mythological components of the American Dream and charge government with an obligation to give credence to the creed. There will never be a completely level playing field, to use the common metaphor; but there should, at least, be a field of play. An untested graduate from a prestigious university is paid six figures at a Wall Street firm right out of school, without having proven worth; a talented classroom teacher in south Louisiana has responsibilities heaped on, and earns barely enough to get by. Or do we not really believe in democracy’s meritocratic element?

The cacophonous media scarcely helps when its programming does more to captivate than to educate. In language that can be consumed in our time without a single word being altered, Thomas Jefferson wrote of the disease spread by sensational editorializing, and railed against “the demoralizing practice of feeding the public mind habitually on slander, & the depravity of taste which this nauseous ailment induces.” Much as we would like cable news shows to be educational vehicles responsive to problem-solving concerns, we know that’s an impossible dream. But let’s not ignore the consequences of tabloid fever. Caught in a political fog, citizens are tacitly encouraged to be compliant and complacent, captive consumer-animals. Often overwhelmed by the struggles of daily life, they are, drone-like, led to pursue “happiness” in self-defining cosmetic choices, fast cars and the gadgets and games they can’t wait to acquire. And often can’t afford, but buy anyway.

Remedying inequality is not a zero sum game. No harm is done to those with automatic access to educational and career opportunities when more chances are given and the stigma is reduced for folks who start out life without advantages. If those who cry “Socialism!” calm down long enough to realize that America is not in danger of becoming a classless society, and if states’ rights advocates calm down long enough to appreciate that regional character is unlikely to disappear just because steps are taken to nudge society in the direction of equality, we will all be less irritable.

Families cannot do everything. Government cannot do everything. Good civic guidance begins when able classroom teachers motivate (and are rewarded) and able students emerge (and are rewarded). Incentive works magic, as private enterprise proves. But … news flash … CAPITALISM IS NOT DESIGNED TO BE FAIR. Until more is done to move people up, as the G.I. Bill succeeded in doing in the 1940s and 1950s, the economy will continue to work disproportionately to the benefit of the already wealthy. Indeed, even the GI Bill discriminated against African-Americans and the poor.

Too many American voters are not equipped to think critically and make informed choices.  Clearly, government has some role to play in improving outcomes for the many. Isn’t that the defining hope of democracy?

James Madison did not adore democracy. Despite what you probably imagine based on the flag-unfurling histories to which every American citizen has been subject, the “Father of the Constitution” favored a somewhat paternalistic central government that kept the ill-informed in line. We cannot even imagine how shocked he would have been to observe the corrosive effects produced by sensation-driven cable TV news and viral videos on the Internet. All he had to deal with in 1787 was the same corruptibility of human nature the ancients had forewarned of, not neurochemistry affected by the mind-numbing stimuli with which we are bombarded as we stare at TVs and computer screens and “smart” phones.

In the months leading up to the Constitutional Convention, Madison composed a document he titled “Vices of the Political System.” It was a kind of checklist, so that he could begin to determine what kind of a nation he thought America should be. He took aim first at acts of interference committed by some states to the detriment of others; he bemoaned the lack of a uniform currency across the states, and a “want of concert in matters where common interest requires it.” He protested what he termed the “perverseness” of local interests denying Americans a common national identity.

Chief among his complaints was the instability of the personalities who made law at the state level under the largely disunited government constituted by the wartime Articles of Confederation. Too many American politicians were factious men, and the factions to which they belonged fought with a fervor as merciless as it was often wrongheaded. When Madison called the state legislatures “mutable,” he meant unreliable in their actions, with their most vocal members often being those most inclined toward “self-interest” and “personal ambition.” His words resonate today. Big time.

He worried as much about those in elective office as he did about voters who were, either by nature or lack of adequate education, followers, weak-minded and subject to the shiny bad ideas of demagogues. The implications for the republic were potentially catastrophic. Suspicious of what we know as democracy, he wanted nothing so much as a central government that limited the potential to have visited upon any state in the Union stupid, backward laws emanating from provincial minds. He would propose, in this spirit, that a United States Senate, under a new federal Constitution, retain veto power over state legislation that it disapproved — legislation Madison impolitely termed “vicious.”

In “Vices of the Political System,” he put out a call for a government system through which majority rule had to be balanced against minority rights if it was to be fair and equitable. He posed: “Whenever therefore an apparent interest or common passion unites a majority, what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?” Among vices he perceived, limiting the right of suffrage was of particular concern, for it diminished any claim to representative government. All people needed to be restrained from committing injustices, he asserted, and worried what would happen when “enthusiasm” (especially when religious in tone or substance) was “kindled,” and set upon some unoffending outside group.

Madison knew enough of human psychology that “individuals join without remorse in acts against which their consciences would revolt if proposed to them under the like sanction, separately in their closets.” The danger of groups of men getting fired up and doing the kind of harm they might never contemplate as individuals, harm that would come back and bite them, as we would say — this fear was prominent in Madison’s mind in the spring of 1787.

He knew how easily fear magnified. He understood how the “herd mentality” operated. He let it be known that a republic could be fair or unfair, inspired or idiotic. He saw us coming.

“Vices of the Political System,” a document virtually no one reads, is possibly the finest political work the “Father of the Constitution” ever composed. It appears as an outline, as dressed-down notes, and lacks the pithiness and polish of, say, Thomas Jefferson’s immortal Declaration. And it doesn’t sound conventionally “patriotic” either, with all of its criticism of Americans for their lack of character.  Yet there was no greater patriot, was there?

So the question now is pretty much the same as it was when Madison posed it. What must we do to contend with our ill-informed electorate and the limited, if not single-issue, politicians, whose lack of expertise inhibits constructive work? The life of the mind almost seems to have become detached from the practice of politics. Voters know precious little about the candidate whose statements are drawn from pollsters and focus group findings, who appears to lack a sense of historical causes and effects — let alone a clear obligation to do what is right and necessary for the greatest numbers of constituents.

Before we propose a way to respond constitutionally, let’s add an awkward question. Isn’t democracy, by definition, the best form of government? The answer to this one is “Yes, but.” A broad electorate is only productive of good when voters are genuinely knowledgeable about issues that impact them. Plus, let’s admit that the sophisticated understanding necessary to be well-informed is increasingly hard to achieve today, a time of social complexity the founding generation could never have anticipated.

So, to conclude, here are some scenarios showing what a hypothetical new Constitution–more equitable, more democratic–might look like:


  • With 100 percent public financing of national elections, the compulsion to fundraise for re-election is removed, allowing for more actual governing.
  • Members of the House of Representatives (understood, since 1789, as “the People’s House”) would be chosen every third year, not every other year; they would be ineligible for reelection after twelve total years in Congress. Members of the Senate would still be elected for a six-year term, but would be ineligible to run for re-election after two terms.
  • One could move from the House to the Senate, or vice-versa, even after twelve years in the one body. But to minimize the obvious underside of the lobbying business, all who have served in Congress are to be prohibited for five years after leaving office from obtaining financial compensation from any corporation, any industry or interest, that their actions while in Congress directly benefited.
  • Filibuster procedure could be modified as follows: In the case of an objection to proceeding to debate a measure, or to voting on an amendment or final bill, the three-fifths cloture motion required to overcome the objection is only to be applied by a national political party once per session of Congress. Otherwise, agreement of a simple majority of members will be sufficient to proceed to debate or to bring a bill to a vote. During a filibuster, a minimum of fifteen members must remain on the floor at all times.
    • Election Day becomes “Election Days” — three, to be precise, beginning on the weekend, so that more working people can get to the polls who are not casting their ballots by mail or other established means.


  • The President serves one six-year term, and is eligible to run for re-election only after six years elapse after the presidency has ended. It would thus be possible for a popular president to serve two terms — presumably to clean up the mess left by his or her successor.  (The idea of a six-year presidency, it should be noted, has been tossed around for years. Allowing an effective president to resume his or her former office, in the Grover Cleveland mode, after a six-year hiatus, is a unique proposal. It could persuade some presidents to return to the House or Senate, too, which might not be a bad idea. John Quincy Adams enjoyed some of his best days in political life during nineteen years of post-presidential service in the House.)
  • That odd vestigial organ of the Constitution, the Electoral College, is gone, replaced by the Congressional District system for electing a president: one district, one electoral vote. Eliminating the corrupt instrument of gerrymandering is an improvement on democracy: with districts mathematically (not politically) constructed, the system becomes more representative than the general ticket plurality system (all the electoral votes of a state going to a single candidate). This option was discussed from time to time in early U.S. Congresses, so it, too, is not an entirely new idea. The District system was Madison’s preference from the start, according to his testimony as a retired ex-president.
  • On the subject of impeachment, the phrase “high crimes and misdemeanors” needs to be adjusted, removing the tepid “misdemeanors.” Given the specious (and purely partisan) cause upon which President Bill Clinton was impeached, and that knee-jerk Obama haters routinely bring up, we should be very careful not to impeach a president without just cause.


  • As in the alteration of the terms and re-election prospects of President, Representatives and Senators, the Supreme Court should not be a lifetime appointment. The partisan predictability of High Court decisions makes it desirable to limit court appointments to ten years.


With the disappearance of those no-longer-meaningful clauses and amendments meant for governing an earlier American society, a new article re-clarifying the rights of citizens should be introduced. Here is where the promise of educational equality, clean energy initiatives, tax guidelines to render the super-wealthy super-patriotic and similarly urgent statements of principle (i.e., corporations are not people) belong. In accordance with Federal Poverty Guidelines, no wage earner who works full-time should be paid at a rate that leaves him or her in poverty. In pursuit of clean energy, the federal government should prioritize clean power plants, safe chemical facilities, and should enact laws, responsive to scientific knowledge, that encourage greater energy efficiency, reduced carbon emissions, groundwater safety and waste storage and treatment solutions.

A democratic republic. Either we are or we aren’t. When officers in charge of business conglomerates act against the public’s interest and exert undue influence over politics, capitalism is not an expression of freedom: it is deceptive practice aimed at bolstering the power and benefit of a privileged minority. Free enterprise is not the same as corporate welfare or government-corporate collusion. Occupy Wall Street came about as an expression of this principle; it is the Constitution, though, that should do the job of diffusing power responsibly and keeping people with power honest.

The problem of income inequality may have captured popular interest with suddenness during the 2012 presidential campaign, but it has been a clarion cry before in our history. In 1944, Vice President Henry Wallace (who had previously served the New Deal as secretary of agriculture) was as blunt as any Occupy protester ever was when he called out the political evil committed by Wall Street profiteers: “They claim to be super-patriots, but they would destroy every liberty guaranteed by the Constitution. They demand free enterprise, but are the spokesmen for monopoly and vested interest. Their final objective, toward which all their deceit is directed, is to capture political power so that, using the power of the state and the power of the market simultaneously, they may keep the common man in eternal subjection.”

Nineteen forty-four! That’s astonishing … or maybe eerie. Will we ever learn?

It has often been said that the single-minded emphasis on profit making, when the financial sector ran itself, caused the 2008 meltdown. It was supposed to be a wake-up call, but it really wasn’t. Our stagnant middle class demands the adoption of measures to remedy what remains wrong. This is not a call to revolution, but a moderated rebalancing based on a deliberate concern for the common good.

Let us close, then, by repeating democracy’s first principle: Government exists to help as many as possible. What is the alternative? Corporate amorality? Unpoliced exploitative greed? A “survival of the fittest” libertarianism inviting heightened class tensions and violent reaction? Granted, the new Constitution of the progressive’s fantasy will not happen anytime soon. But perhaps we can start by directing our elected officials to take up the kinds of conversations people actually want to hear taking place in Washington. Remind them that their job is to improve the lives of the many.

Now don’t you worry, conservatives. Even if fairness is pursued on a massive scale and the income gap narrows through laws generated by new constitutional requirements, partisan identity is not going to disappear and socialism is not going to take the place of capitalism. We’re way past that. What we need to keep before the public eye is the existing education (and happiness) gap and all the implications that flow from there. An informed and caring citizenry is a republic’s greatest protection. So let’s talk.

Andrew Burstein and Nancy Isenberg are Professors of History at Louisiana State University and coauthors of "Madison and Jefferson" (Random House).  Follow them on Twitter @andyandnancy.

By Andrew Burstein

Andrew Burstein and Nancy Isenberg are historians at Louisiana State University and co-authors of the forthcoming book "The Problem of Democracy: The Presidents Adams Confront the Cult of Personality." Follow them on Twitter @andyandnancy.

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By Nancy Isenberg

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